Is listening different for civil vs. criminal lawyers?

Do lawyers need different listening skills depending on their area of practice? I recently posed this question to an attorney with experience as a prosecutor and white-collar defense attorney, as well as civil practice in a highly regulated area.

This attorney described different listening challenges in civil versus criminal practice:

On the civil side, when talking to witnesses, this attorney looks for the witness who suddenly says too much: “When they start talking and talking — a lot — I know I’ve hit paydirt. When they’re blathering and not answering the question at all, especially when they had been answering directly and succinctly for the prior questions, that gives me a red flag that they are uncomfortable with the subject matter of that question. In turn, that leads me to pry deeper and not let them off the hook about that subject.”

In contrast on the criminal side, one challenge is to notice what is not said–particularly when the witness clams up about an important and difficult topic. “The witness will be in the middle of talking through a timeline and then, wait a minute–what happened in those two days you didn’t talk about?” Thus in interviewing witnesses on a criminal matter, the attorney focuses on “listening for the gaps.”

Civil and criminal lawyers have different cultures, different procedural rules and norms, and different consequences as a result of their work. Sometimes I wonder if they have much of anything in common, other than going to law school. What about listening? Do you think civil and criminal lawyers face different listening challenges? Or is effective listening fairly universal, regardless of the area of practice?

Published by Jennifer Romig

I don’t think so, based on my experience that includes both civil and criminal practice. Witnesses give us tells of nervousness or avoidance or the like in any trial or deposition. Indeed, this may be a matter of “listening” (seeing) body language as listening with our ears and of listening to the tone as much as the words.